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Don't settle for 'Rights-Lite'

Head of Human Rights at Leigh Day explains why the Government have dropped their immediate plans to repeal the Human Rights Act and why now is the time for its supporters to stand up and explain the importance of these fundamental rights

Sean is a partner in the human rights department at Leigh Day.  He acts for individuals and campaign groups on a wide range of human rights issues including prisoner rights, environmental, discrimination and information law matters.
The Government's much-heralded proposals to scrap the Human Rights Act and replace it with a British Bill of Rights are not now included in the Queen's Speech and the Government will instead now consult on “bringing forward proposals” for such a Bill.

This represents a last minute attack of their much-prized "common sense" on the issue as the Government's proposals were wrongheaded at a number of levels.

The most fundamental issue is that, whatever the UK Government does domestically, as long as the UK remains a party to the European Convention on Human Rights, people will still ultimately be able to take their grievances to the European Court of Human Rights in Strasbourg where the Court would decide whether the individual’s human rights, as set out in the Convention, had been breached.

As a requirement of the Convention itself, the UK remains obliged to obey the judgments of the Court. This would not change.

What would change, if the Human Rights Act was scrapped and replaced with a 'Rights lite' British Bill of Rights, is that people would no longer be able to use the domestic courts in the UK to enforce the rights set out in the European Convention. Rather, some individuals (and it seems only those deemed worthy) would be able to use the domestic courts to enforce a weaker rights set out in the British Bill of Rights.

This would mean that more people in the UK, at the sharp end of Government's actions, aggrieved at the breach of their human rights (the proper ones as set out in the Convention) and no longer able to enforce their rights in the domestic courts, would inevitably end up going to the Strasbourg based European Court.

The question is therefore why, when we already have a continent-wide treaty signed up to by 47 separate countries (including the UK) and covering over 800 million people which sets out a minimum list of basic human rights that countries are obliged to respect, would the Government want of give us its own pale imitation of these rights to some of its citizens in the full knowledge that people would still be able to go to Strasbourg to enforce their proper Convention rights?

The answer was probably a result of petulance and hubris.

It has lost a number of high profile decisions in the European Court of Human Rights, exacerbated by winding up the media and its supporters into an ill-informed human rights hating frenzy about what on detailed reading are perfectly sensible judgments and then compounded by painting themselves into a corner by promising "to do something about it".

The only logical rationale for the Government putting forward a British Bill of Rights would be if the UK were also proposing to leave the European Convention on Human Rights. However retrograde a step, at least it would make sense.

At the moment at least, the Conservatives aren’t willing to contemplate this and say that, they intend to make the European Court’s decisions simply “advisory”.

The Court, with good reason, has already made it clear that this approach would be contrary to the Convention itself and is simply not acceptable. You can’t simply pick and choose which judgment you obey, that is not how the Rule of Law works.

The whole system would collapse if all 47 countries were simply free to ignore all Court decisions against them. Therefore the Government has a dilemma.

Only one country has ever chosen to leave of the European Convention on Human Rights. Greece exited in 1969 following a military coup and wide scale human rights abuses (joining again in 1974 after the end of military rule).

Internationally, the damage to the UK’s reputation of leaving the Convention would be incalculable. An exit from the Convention would mean that UK would join Belarus, currently the only military dictatorship in Europe, as the only countries on the continent outside the Convention.

Even now I am sure I can hear a Belarus Government spokesperson saying “Like the UK, we don’t need the Convention, we have our own Belarus version of human rights based on common sense and nobody telling us what to do”.

Assuming that pulling out of the Convention remains a step too far, the only purpose of these legally incoherent changes would be to make it as difficult as possible in practice for people to actually enforce their human rights as set out in the Convention.

It takes far longer and is far more expensive to enforce your rights at the European Court of Human Rights in Strasbourg than in the domestic courts and the Government may calculate that fewer troublesome human rights cases are likely to be brought. Less a policy based on high principle and more one based on low cunning.

The Government should therefore be given some credit for pulling back from the brink in order to consult about any proposed changes.

It remains unclear how much this change of heart was due to a Damascene conversion to the importance of human rights or rather due to concerns that the parliamentary arithmetic meant it was unlikely that the Bill would make it through either the House of Commons or Lords or obtain the approval necessary from the devolved legislatures in Scotland, Wales and Northern Ireland.

Whatever the reason, it is now important that supporters of human rights use the consultation to explain the importance of both the Human Rights Act and the European Convention.

That it is important to have internationally recognised basic and fundamental rights by virtue of your existence as a human being. That these rights belong to everyone, the good, the bad and the ugly.

That it is important that these rights cannot be taken away from you by Government wishing to pursue expedient and oppressive policies, often to considerable media acclaim and electoral advantage.

That being able to enforce these rights in this country makes these protections far more tangible.

That, as a last resort, having an independent international Court adjudicating on the meaning of these rights, and occasionally being able to tell a country what it doesn’t want to hear, is a strength not a weakness of the system.

The European Convention on Human Rights, drafted by a future Conservative Lord Chancellor and championed by one of our greatest Conservative Prime Ministers, displays a practical fairness, decency and compassion in identifying a set of inalienable rights that belong to all of us and are protected under the law.

The Human Rights Act enables people to enforce these rights in the domestic courts. When searching for a Bill of Rights that represent the best of Britishness, why do we need to look any further?

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